Secretary DFFH v Hage (a pseudonym)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT/GENERAL LIST
S ECI 2024 06579
BETWEEN:
SECRETARY OF THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING	Applicant
-and-
BEVERLEY HAGE (a pseudonym)	Respondent

---

JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 18, 20, 23 December 2024; 13, 17 and 23 January 2025.
DATE OF JUDGMENT:	31 January 2025
CASE MAY BE CITED AS:	Secretary DFFH v Hage (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VSC 18

---

COURTS AND JUDGES — Parens patriae jurisdiction — Pregnant teenage child the subject of a ‘care by Secretary’ protection order under s 289 of the Children Youth and Families Act 2005 — Child in secure welfare service and in late stages of pregnancy— Application for declarations and orders authorising use restraint to facilitate medical treatment and procedures, including planned caesarean section birth under general anaesthetic — Whether such a procedure also requires the authorisation of the Court - Application for orders authorising Secretary to determine whether to use restraint to facilitate medical treatment and caesarean section birth — Application for order authorising the Secretary to place the child in a secure welfare service in circumstances where the Secretary has previously placed the child in secure welfare service for two periods of 21 days and statutory powers for continued placement are exhausted – Whether order authorising child’s placement in secure welfare service is within the power of the Court in its parens patriae jurisdiction — Best interests of the child — Children, Youth and Families Act 2005 s 172, s 173 — Medical Treatment Planning and Decisions Act 2016 - Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218.

---

Counsel	Solicitors
For the Applicant	Ms S Fitzgerald of counsel (11 and 23 December 2024 and 13, 17 and 23 January 2025) Ms Fiona McLeod SC (18 December 2024) Ms Gemma Cafarella (18, 20 and 23 December 2024)	Legal Services Branch, DFFH
For the Respondent	Mr E Myles (11, 18, 20 and 23 December 2024 and 13, 17 and 23 January 2025) Dr I Freckelton KC (18, 20 and 23 December 2024)	Victoria Legal Aid

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Issues for determination................................................................................................................... 3

Procedural background to this application................................................................................... 4

The Originating Motion and Amended Originating Motions............................................... 7

Is there power to authorise further placement in a secure welfare service?........................ 12

The scope of the accommodation orders sought by the Secretary...................................... 12
The legal framework................................................................................................................... 14
The Court’s parens patriae jurisdiction.......................................................................... 18

Conclusions as to power to order that Beverley be placed in a secure welfare service and secure accommodation.................................................................................................................. 20

Should the Court authorise a further placement in the secure welfare service?................. 20

The Secretary’s evidence............................................................................................................ 20
Evidence and instructions from Beverley................................................................................ 23
My observations on a view of the secure welfare service..................................................... 24
The further instructions from the Secretary as to alternative accommodation........ 25

The submissions of the Secretary.............................................................................................. 25
The submissions of counsel for Beverley................................................................................. 25
Conclusion as to the appropriate accommodation orders.................................................... 27

The medical treatment issues........................................................................................................ 29

The evidence called by the Secretary....................................................................................... 31
Evidence relating to Beverley’s developmental and functional capacity................. 32
Evidence as to plans for mode of delivery of Beverley’s baby................................... 33
Subsequent evidence as to consultations on 20 December 2024................................. 36
Evidence from the medical records................................................................................ 37

Evidence on behalf of Beverley................................................................................................. 41
Taking of blood.................................................................................................................. 41
Instructions as to childbirth............................................................................................. 42

Does the Secretary have power to consent to Beverley being required to give birth by caesarean section under general anaesthetic without an opportunity to labour naturally?.......... 44

Consent to medical treatment................................................................................................... 44
Medical procedures which are beyond the scope of parental consent...................... 47
The parties’ submissions.................................................................................................. 52
Conclusion as to status of a decision on behalf of a minor to consent to a requirement of a caesarean section under general anaesthetic..................................................... 53

Should the Court make orders authorising medical practitioners to use restraints for the purposes of enabling a planned caesarean section under general anaesthetic?............ 54

Should the Court authorise use of restraint to enable medical practitioners to provide long term contraception to Beverley by way of an IUD?...................................................................... 58

Court supervision after the accommodation orders and medical treatment orders........... 59

Closing observations....................................................................................................................... 62

HER HONOUR:

Introduction

The respondent, who has been assigned the pseudonym Beverley, is 15 years old. At the time of the original application made by the Secretary on an urgent basis, Beverley was 31 weeks pregnant and expected to give birth in approximately 7 weeks’ time.

Beverley is the subject of a ‘care by Secretary order’ made pursuant to s 289 of the Children, Youth and Families Act 2005 (CYF Act).0F[1] That order gives the Secretary sole parental responsibility for Beverley and makes the Secretary her guardian to the exclusion of all other persons.1F[2] The order gives the Secretary ‘the same rights, powers, duties, obligations and liabilities as a natural parent of the child would have.’2F[3]
[1]Affidavit of Robert Begley affirmed on 6 December 2024 (First Begley Affidavit); Exhibit RJB-1, 1-2.
[2]CYF Act, s 289; s 172(1).
[3]CYF Act, s 172(1).

The Secretary brought this application on the basis that Beverley requires treatment and procedures recommended by medical practitioners in connection with her pregnancy, but has not agreed to all of the recommended procedures. However, medical practitioners have assessed Beverley not to be competent to make decisions about her medical treatment, by reason of her age and a mild intellectual disability.

The Secretary’s position is that she has power, pursuant to the ‘care by Secretary’ order, to authorise the necessary medical treatment, but seeks orders from the Court authorising measures to restrain Beverley, if necessary to facilitate the provision of that medical treatment. The treatment and procedures for Beverley that the Secretary proposed to authorise, and for which the Court’s authorisation of restraint was sought, were identified in an affidavit of Dr Stefan Kane, an obstetrician and the director of Obstetrics at the Royal Women’s Hospital.3F[4] The particular measures are discussed in more detail below, but most relevantly included:
[4]Affidavit of Stefan Kane sworn 5 December 2024 (Kane Affidavit), [4]; Exhibit SCBK-1 (Report to the Department of Family, Fairness and Housing by Dr Alina Roman dated 27 November 2024).

(a) the taking of blood for testing;

(b) that Beverley would be required to give birth by planned caesarean section under general anaesthetic; and

(c) that a reversible method of birth control, an intra-uterine device (IUD), be inserted during the caesarean operation.

Beverley has also recently been living in a secure welfare service pursuant to a placement authorised by the Secretary under s 173 of the CYF Act. Section 173 authorises the Secretary to place a child for whom the Secretary has parental responsibility under the Act in a ‘secure welfare service’ (described in s 44(1)(a)(i) as ‘a service with lock-up facilities’) for a period not exceeding 21 days (and, in exceptional circumstances, for one further period not exceeding 21 days) if the Secretary is satisfied that there is a substantial and immediate risk of harm to the child. The Secretary considers that there are substantial risks of harm to Beverley if she is not held in a secure welfare service for the period before she gives birth, for reasons that I come to below. The Secretary had already placed Beverley in the secure welfare service for a period of 21 days, and at the time of the application had placed her in that service for a second period of 21 days, due to expire on 23 December 2024.4F[5] As the Secretary had no power under s 173 of the CYF Act to authorise further placement in the secure welfare service, the Secretary seeks orders from the Court, pursuant to its parens patriae jurisdiction, authorising that she be placed in the secure welfare service for a further 21 days.
[5]First Begley Affidavit, [11].

After several hearings and the filing of further evidence, I declined to make the orders sought by the Secretary, but on 20 and 23 December 20245F[6] I made orders:

(a) permitting Beverley to be placed in a secure welfare service for a limited period of up to 12 days while more appropriate secure accommodation was arranged for Beverley, and that she remain in secure conditions only until she attended hospital to give birth (accommodation orders); and

(b) authorising the use of restraint to facilitate medical treatment in more limited circumstances, which would permit Beverley to attempt first to have a natural birth or give birth with medical assistance or interventions including an epidural for pain relief, with the intervention of a caesarean section under general anaesthetic only if medically necessary after these other modes of giving birth were unsuccessful or involved too much risk to Beverley.

[6]The orders of 23 December 2024 were subsequently amended by orders made 16 January 2025 to make clear that the orders were in effect only while Beverley was the subject of the care by Secretary order.

The following are my reasons for making those orders.

After the making of the orders I listed the matter for mention on 13, 17 and 23 January 2025 to enable the Court to be informed of Beverley’s situation.

On Saturday 26 January 2025 Beverley gave birth to a healthy baby girl. Beverley gave birth by a vaginal delivery, after commencing labour naturally and with administration of an epidural. After some treatment for blood loss and surgery for tearing which had occurred during delivery, Beverley was recovering well, and was visiting her baby in the Special Care Nursery regularly, and engaging with her warmly.6F[7]
[7]Further Affidavit of Robert John Begley affirmed 27 January 2025 (Seventh Begley Affidavit), [4]-[7]; [32]-[35].

No further authorisation for medical treatment or restraint was sought and accordingly I dismissed the application today.

Issues for determination

The matters for consideration in making my substantive orders were:

(a) whether it was open to the Court pursuant to the parens patriae power to authorise the Secretary to place Beverley in the secure welfare service for a further period of time, where the statutory power of the Secretary pursuant to s 173(2)(b) of the CYF Act was exhausted;

(b) if such a power exists, whether the Court should authorise such a further placement and if so, for how long;

(c) whether the Secretary had power to authorise medical practitioners to require Beverley to undergo a planned caesarean section under general anaesthetic in circumstances where Beverley wished to attempt to have a natural birth;

(d) whether the Court should order that Beverley should have a planned caesarean section birth under general anaesthetic and the associated restraints that medical procedure would involve; and

(e) whether the Court should authorise the use of restraint to enable the medical treating team to provide Beverley with a reversible form of contraception by way of insertion of an IUD.

Procedural background to this application

The application came to the Practice Court on 6 December 2024, and was first heard by Justice Gray, before the matter subsequently came before me in the Practice Court the following week. The focus of the application before Gray J was the urgent requirement that Beverley have blood tests required for various medical reasons relating to her pregnancy. Beverley has a strong aversion to needles, and she had withdrawn her arm and become distressed when medical staff had attempted to take blood, amounting to a withdrawal of consent.

At that hearing, Beverley was represented by Legal Aid but the Legal Aid in-house counsel who appeared for Beverley had not had an opportunity yet to discuss the application and the issues involved with her.

Justice Gray concluded that the blood tests would be in Beverley’s best interests.7F[8] However, his Honour declined to make orders on the basis that the evidence made available to the Court at that time did not establish that the blood tests were sufficiently urgent to justify her being forcibly restrained to facilitate the blood tests, and taking into account that Legal Aid had not yet been able to obtain instructions and she was not personally on notice of the proceeding.8F[9]
[8]Secretary of the Department of Families, Fairness and Housing v Hage (a pseudonym) [2024] VSC 764 (Hage No 1) at [3]; [67](a).
[9]Hage (No 1), [66]-[68]. Justice Gray observed at [66]:
‘Given the strength of Beverley’s aversion to needles, I was concerned that restraining Beverley to take blood from her may harm her psychologically. I was especially concerned that the application of restraints on Beverley through a court process conducted without notice to her could harm her. At the very least, she should have an opportunity to be heard before any such restraint is ordered, given that the blood tests are not needed to preserve her from an imminent risk to her life or health’.

Justice Gray delivered reasons for his decision9F[10] which have been valuable in understanding the factual circumstances leading to the urgent application and the legal framework in which it falls to be decided. Justice Gray made various orders that are relevant also to the current proceedings:
[10]Hage No 1 [2024] VSC 764.

(a) Given that the respondent is a minor and the case concerns her medical treatment and other private matters, Gray J was satisfied that it was necessary, to avoid prejudice to the administration of justice, to order that she only be identified by the pseudonym ‘Beverley Hage’.

(b) Justice Gray made an interim suppression order prohibiting any report of the proceeding that would tend to identify her pursuant to s 20 of the Open Courts Act 2013, effective until 20 December 2024.10F[11] On 18 December 2024, the Secretary informed the Court that she did not seek to renew that order and Legal Aid did not seek any further suppression order.11F[12]

(c) Justice Gray also, due to the urgency of the matter, dispensed with the requirement to appoint a litigation guardian under the Supreme Court (General Civil Procedure) Rules 2015 (Rules), O 15 for the purposes of the hearing before him on 6 December 2024. His Honour granted Mr Eric Myles, senior in house counsel in Family and Children’s law for Legal Aid, leave to represent Beverley directly.12F[13] Justice Gray also appointed pro bono counsel who appeared as amici curiae in a consultative role for the hearing on 6 December 2024. Mr Myles continued to have leave to appear to represent Beverley, and Dr Freckelton SC also appeared for her in hearings before me. Taking into account the fact that Beverley was legally represented I did not consider it necessary to seek the assistance of pro bono counsel for the further hearing of the matter.

(d) Justice Gray requested the Secretary to give notice under s 35 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC).13F[14] No appearance had been made by the VEOHRC at the time of the hearing before me on 18 December 2024. On 18 December 2024, the Secretary informed the Court through counsel that the VEOHRC did not intend to intervene.14F[15]

[11]His Honour relied on Mercy Hospitals v D1 & Anor [2018] VSC 519, (Mercy Hospitals), [7] (Macaulay J). See Hage (No 1) at [5(a)].

[12]Transcript of 18/12/24, T12.18-21.

[13]Mercy Hospitals, [8] (Macaulay J). See Hage (No 1) at [5(c)].

[14]Hage (No. 1), [5](d).

[15]Transcript 18/12/24, T13.23-25.

I assumed the role of Practice Court judge on 9 December 2024, and held a mention of the matter on 11 December. Mr Myles appeared for Beverley and advised that senior practitioners at Legal Aid who were experienced in working with children had assessed Beverley to be competent to give instructions, and had also had an opportunity to take instructions from her about some of the main issues arising in the application.

At the mention, Mr Myles conveyed Beverley’s instructions which had been given to senior Legal Aid practitioners experienced in working with young people and in child protection matters. These were subsequently recorded in an affidavit of Jennifer Anderson, who gave evidence that she had practised in the area of children’s law.

Further mentions and hearings were held on 18, 20 and 23 December 2024 before I made substantive orders on 23 December 2024, as discussed further below.

On 13 December 2024 I requested by email from my chambers that the parties advise whether it was possible to arrange a view of the secure welfare service in which Beverley was living and in which it was proposed that she continue to be placed pursuant to orders sought in the application.15F[16] The Department of Families, Fairness and Housing facilitated a view on 17 December which I attended with representatives of Legal Aid and the Department and with my associate. At that view I was shown through the secure welfare service and met with Beverley.
[16]In Re Beth (2013) 42 VR 124, Osborn JA had conducted a view of a secure accommodation in a case involving an application for orders that Beth, a 17 year old, could be held indefinitely in secure accommodation with lock up facilities. In the present case the Secretary proposed in response to my request that it would be more appropriate to have a video tour of the facility given that other young people were residing there, however Beverley and her representatives at Legal Aid supported the request for a view.

The Originating Motion and Amended Originating Motions

The Originating Motion filed by the Secretary on 5 December 2012 sought the following orders relating to Beverley’s medical treatment:

3.Order 4 applies where all strategies other than the use of chemical, mechanical, physical or other restraint of the child, which in the opinion of the child’s treating medical team are reasonably available and clinically appropriate, have been tried and found inadequate.
4.The Court authorises the use of chemical, mechanical, physical or other restraint of the child; that is reasonably necessary to enable medical examination, medical treatment, medical procedures and surgeries for the child; that have been recommended by a qualified medical practitioner of whom the child is a patient; and that are consented to by the Secretary; where the Secretary considers it to be in the child’s best interests.
5.Where there is disagreement between members of the child’s treating medical team, the Court authorises the Secretary to make a determination whether the use of chemical, mechanical, physical or other restraint of the child is reasonably necessary by balancing the medical advice received from the child’s medical team, taking into consideration the best interests of the child.

Following Gray J’s ruling declining to make any orders as to the taking of blood on the basis of the evidence before him, a mention of the matter was listed on 11 December 2024. In advance of that hearing, the Secretary provided a proposed Amended Originating Motion dated 10 December 2024, which in substitution for the orders sought in the Originating Motion, sought a declaration relating to the Secretary’s powers under the CYF Act. The proposed Amended Originating Motion also sought an order authorising Beverley’s continued placement in a secure welfare service. It sought, relevantly:

1A declaration that the Secretary, or her delegate, is authorised by section 172 of the Children, Youth and Families Act 2005 (Vic) to provide parental consent to the use by treating medical practitioners of chemical restraint or physical restraint on Beverly Hage where:
(a) the child’s treating medical team agree with the use of restraint;
(b)the use of restraint is the least restrictive means of enabling medical examination, medical treatment, medical procedures and/or surgeries for the child;
(c)those treatments have been recommended by a qualified medical practitioner of whom the child is a patient; and
(d)the specific treatment and form of restraint are consented to by the Secretary acting in conformity with her obligations in ss 10 and 11 of the Children Youth and Families Act 2005 (Vic).

2.The Secretary is authorised to place Beverly Hage in a secure welfare service for a further 21 days, in addition to the authority to place a child in a secure welfare service for a period of up to 42 days that is provided by section 173(2)(b) of the Children Youth and Families Act 2005 (Vic).

At the mention on 11 December 2024, I conveyed to the parties my concern as to aspects of the relief as originally sought and as proposed by the Amended Originating Motion, in the context of what was at that time disclosed by the evidence. These concerns included:

(a) the scope of the medical procedures which were recommended by the treating team at the Royal Women’s Hospital and which would be the subject of the orders, with the associated authorisation of restraints,16F[17] in particular the plan of the medical team that Beverley be required to give birth by caesarean section under general anaesthetic without any proposal to permit her to labour naturally, which in my view involved a profound form of chemical restraint;17F[18]
[17]Transcript 11/12/24, T.30-T3.22.
[18]Transcript 11/ 12/24, T7.05-24. See also submissions of Legal Aid counsel T28.17-T29-03.

(b) the indication from the instructions from Beverley that she did not appear to understand what is involved in a natural birth and what is involved in a caesarean, or to have had any, or any meaningful, discussion or explanation of those modes of birth;18F[19]

(c) whether there was adequate evidence to enable the Court to make a decision as to the Secretary’s authority to authorise a caesarean section as proposed, and whether there had been sufficient information provided to Beverley for her to form views about the proposed mode of childbirth; 19F[20]

(d) the application for an order to keep Beverley in the secure welfare service for a further period of 21 days, pursuant to the parens patriae power, in circumstances where this was clearly beyond what would be authorised under the CYF Act,20F[21] and where there was limited evidence, including no evidence from Beverley’s mother, and the only authority identified by counsel for the Secretary was in a non-analogous situation of providing a location to which a child accused of a serious crime could be released on bail.21F[22]

[19]Transcript 11/12/24, T24.13-20.

[20]Transcript 11/12/24, T25.14-25

[21]Transcript 11/12/24, T36.09-22.

[22]WD v DPP; Secretary to the Department of Families, Fairness and Housing v WD(no 3) [2024] VSC 14 (Elliott J).

I was informed by Beverley’s counsel that she had given instructions that she was willing to have blood taken at the Royal Children's Hospital, with the assistance of some anti-anxiety medication used only therapeutically and not to the extent of chemical restraint, and that it was not at that stage appropriate to make any order authorising restraint.22F[23] The Secretary pressed for orders, pending the further hearing of the matter, permitting use of restraint for blood testing at that time, on the basis of urgency. I was not persuaded that this was necessary given Beverley’s expression of willingness to have blood taken at the Children’s Hospital, and that it was appropriate to permit her to do so without any restraints applied.23F[24]
[23]Transcript 11/12/24, T9.08-25; T31.02-08.
[24]Transcript 11/12/24, T34.19-T35.02.

The matter was listed for a further mention on 13 December 2024. That hearing was vacated at the request of the parties and relisted for 18 December 2024.

Before that hearing, on 12 December 2024, the Secretary provided a further proposed Amended Originating Motion, and on 13 December provided submissions and an affidavit of Dr Alina Roman, a maternal fetal specialist and consultant obstetrician at the Royal Women’s Hospital who was Beverley’s treating obstetrician. The affidavit confirmed that Beverley had blood taken at the Royal Children’s Hospital on 12 December 2024, with the assistance of an olanzapine wafer to assist with her anxiety symptoms, nitrous oxide for pain and a support person present with her. Dr Roman also stated that there were no plans for further blood tests, but if that circumstance changed and tests were necessary the same measures would be made available to manage Beverley’s anxiety.24F[25] There was no further need to consider the specific question of restraint for the purposes of taking blood and no orders were sought specifically for that purpose.
[25]Affidavit of Alina Roxana Roman, sworn 13 December 2024, [18]-[20].

By the further proposed Amended Originating Motion the Secretary sought, instead of the relief sought in the previously proposed amended originating motion, the following orders:

1.A declaration that where a child is not Gillick competent to provide consent, the Secretary, or her delegate, is authorised by section 172 of the Children, Youth and Families Act 2005 (Vic) to provide parental consent to the use of restraint by treating medical practitioners.
2.The restraint to be used in this specific case and the circumstances in which it will be used is:
(a)Consistent with the Royal Children’s Hospital Guideline on Acute Behavioural Disturbance: Acute Management, the use of an oral medication (which may include Olanzapine wafer, lorazepam, diazepam or risperidone) and/or the use of nitrous oxide to facilitate medical examination and medical treatment, including a planned caesarean section and post-natal care;
(b)Consistent with the Royal Children’s Hospital’s Clinical Practice Guideline on Acute behavioural disturbance: Code Response, the safe confinement of the child which may include the physical holding of the child’s arm, and if required legs, to facilitate medical examination and medical treatment, including a planned caesarean section and post-natal care;
(c)The use of a general anaesthetic to allow a planned caesarean section at or around 39 weeks gestation;
(d)The use of a general anaesthetic to allow an unplanned caesarean section to occur if the child goes into labour before 39 weeks gestation; and
(e)One or more of the restraints referred to in paragraphs 2(a)-(d) above to facilitate the insertion of a reversable contraception for the purposes of medical treatment.

3A declaration that the Secretary’s power to consent to the use of restraint in the context of medical treatment under section 172 of the Children, Youth and Families Act 2005 (Vic) is conditioned on:
(a)the child’s treating medical team agreeing with the use of restraint;
(b)the use of restraint being the least restrictive means of enabling medical examination, medical treatment, medical procedures and/or surgeries for the child; and
(c)those treatments having been recommended by a qualified medical practitioner of whom the child is a patient; and
(d)the specific treatment and form of restraint having been consented to by the Secretary acting in conformity with her obligations in ss 10 and 11 of the Children, Youth and Families Act 2005 (Vic).

4.The Secretary is authorised to place Beverley Hage in a secure welfare service for a further 21 days, in circumstances where she has already been placed in a secure welfare service for 42 consecutive days pursuant to section 173(2)(b) of the Children, Youth and Families Act 2005 (Vic).

At the hearing on 18 December 2024, I was informed that the parties had reached agreement as to orders which, with respect to medical treatment issues, largely reflected the terms of the relevant paragraphs of the proposed amended originating motion.25F[26] I informed the parties that I was not willing to make the declaration and orders sought. I did not consider it appropriate to make a general declaration in the terms sought in paragraph 1 in the context of a case involving urgency and a need to focus on the specific circumstances of Beverley.
[26]Transcript 18/12/24, T1.07-15.

That hearing proceeded to address the issues of the medical procedures and treatment recommended for Beverley, and the question of precisely what orders were required to ensure that the medical treating team had all necessary powers to assist Beverely to give birth safely. Evidence was given by Dr Roman in the hearing, the content of which is described below. In the course of her evidence Dr Roman referred to Beverley’s medical records held by the Hospital. These were not before me and I requested that they be made available. This was done on the morning of 20 December 2024.

The matter returned for mention on 20 December 2024. On that day I made the accommodation orders. However, as I had not yet had an opportunity to review the extensive medical records I communicated to the parties that I was not yet ready to make a decision with respect to medical treatment and associated restraints, and that (in light of evidence that did not indicate that Beverley was likely to give birth imminently) I would do so on Monday 23 December 2024.26F[27]
[27]Transcript 20/12/24, T9.09-T.11-08.

On 23 December 2024 I made the orders authorising use by medical practitioners of restraint, subject to the practitioners facilitating Beverley’s delivery of her baby by vaginal delivery (including with epidural) or caesarean section under neuraxial anaesthesia, and only under general anaesthetic if those methods were not assessed as safe or being contrary to her physical and psychological wellbeing.

Is there power to authorise further placement in a secure welfare service?
The scope of the accommodation orders sought by the Secretary

The Secretary requested that the Court authorise that Beverley be placed in a secure welfare service for a further 21 days after 23 December 2024. The Secretary acknowledged that there was no further statutory power for the Secretary to keep her in the secure welfare service.27F[28] The Secretary also acknowledged that the placement involved onerous conditions for Beverley but submitted that given the risks to Beverley while she was pregnant if she did not remain in a safe placement and absconded, it was necessary to ensure that she could be held in a secure environment. The Secretary submitted that the Court had power to authorise placement in the secure welfare service pursuant to the Court’s broad parens patriae power.
[28]Transcript 18/12/24, T10.24-T11.03.

At the hearing on 18 December 2024, the Secretary informed the Court that she proposed to move Beverley to a new, more appropriate, secure accommodation as soon as it was available in early January 2025.28F[29] The Secretary provided the Court a form of ‘Proposed Consent Orders’ which provided, relevantly:

4.The Secretary is authorised to place the Respondent in a secure welfare service for up to a further 21 days, in circumstances where she has already been placed in a secure welfare service for 42 consecutive days pursuant to section 173(2)(b) of the Children, Youth and Families Act 2005 (Vic).
5.In circumstances where a secure facility becomes available as an alternative to the secure welfare service referred to in paragraph 4 above (including within the proposed 21 days, which the Secretary will use her best endeavours to achieve), the Secretary is authorised to place the Respondent in this alternative facility until the Respondent has given birth and for a reasonable recuperative period and an opportunity for bonding with her daughter thereafter subject to necessary risk assessments by child protection.

[29]Transcript 18/12/24, T11.16-29.

Beverley’s counsel informed the Court at that hearing that Beverley did not want to reside in a secure welfare service, the secure welfare service where she had been placed was not fit for purpose, and she wished to go outside and get some baby clothes for her child.29F[30] Beverley, instead, wished to live with her mother.30F[31] In that context, Beverley’s counsel informed the Court that ‘[w]ith some hesitation, we have acquiesced’ to the proposed orders authorising Beverley to be placed in a secure welfare service for a further 21 days ‘in the expectation that the new circumstances ought to be able to be orchestrated much sooner than that’.^.31F[32]
[30]Transcript 18/12/2024, T28.07-29.14.
[31]Transcript 18/12/2024, T29.17-18.
[32]Transcript 18/12/2024, T30.10-15.

I told the parties at that hearing that I would not be willing to make orders by consent providing for Beverley to be placed in the secure welfare service for a further 21 days, particularly in circumstances where it was possible that she may give birth within that period, and there was no evidence as to any arrangement for Beverley to be accommodated with her baby in appropriate circumstances. It was apparent that the secure welfare service would not be suitable accommodation for a baby, including because other young people were resident there. 32F[33]
[33]Transcript 18/12/2024, T30.31-T33.01; T38.10-T39.23; T94.07-21.

At the hearing on 20 December 2024, the Secretary took me to a document entitled ‘Placement options for Beverley Hage following the birth of her baby’.33F[34] The Secretary’s plan identified the accommodation options that could be adopted depending on the scenarios that may arise in Beverley’s pregnancy and in light of assessments of risks to Beverley and her baby. The Secretary’s accommodation options contemplated that Beverley would not be returned to the secure welfare service if she gave birth within the 21 day period in which the Secretary sought authorisation to place her in that service.34F[35]
[34]Exhibit RJB-3 to the Supplementary Affidavit of Robert John Begley affirmed on 19 December 2024 (Third Begley Affidavit).
[35]Transcript 20/12/24, T02.22-30 and T04.12-15.

The question for the Court was therefore whether orders should be made for Beverley to be held in the secure welfare service for 21 days, until she gave birth, or some other period.

The legal framework

Where the Secretary has parental responsibility for a child, as is the case where the child is the subject of a care by Secretary order, the Secretary has powers as to where the child is placed and accommodated. Section 173 of the CYF Act provides, relevantly:

173 Placement of children
(1) This section applies in relation to a child –
(a)for whom the Secretary has parental responsibility under this Act …

…

(2) The Secretary may deal with the child in any of the following ways –
(a) place him or her in an out of home care service;
(b)place him or her in a secure welfare service for a period not exceeding 21 days (and, in exceptional circumstances, for one further period not exceeding 21 days) if the Secretary is satisfied that there is a substantial and immediate risk of harm to the child;
…
(d)place him or her in any other suitable situation as circumstances require.

(3)For the purposes of subsection 2(b), the assessment of risk may be made on the basis of a single incident or an accumulated risk.

Section 174(1) provides that in dealing with a child under s 173, the Secretary:

(a)must have regard to the best interests of the child as the first and paramount consideration; and
(b)must make provision for the physical, intellectual, emotional and spiritual development of the child in the same way as a good parent would;
(c)must have regard to the fact that the child’s lack of adequate accommodation is not itself a sufficient reason for placing the child in a secure welfare service; and
(d) must have regard to the treatment needs of the child.

Section 175 requires that if a child is placed in a secure welfare service, the Secretary must plan for and support the transfer of the child to and integration of the child in another suitable placement in order to reduce the need for the child to be placed in a secure welfare service again.

The Secretary identified one case in which this Court in the exercise of the parens patriae jurisdiction had authorised placement of a child in a secure welfare service at a time when the Secretary’s statutory powers under s 172 had been exhausted, WD v DPP; Secretary to the Department of Families, Fairness and Housing v WD.35F[36] That case involved a 13 year old child who had been charged with murder, and had been granted bail on condition that she remain in a secure welfare service in the care of the Secretary. An application had been made to revoke her bail when circumstances had arisen in which the Secretary could no longer ensure the safety of WD, her carers or the community while she resided at the secure location. The 42 day maximum period during which the Secretary could lawfully place WD in a secure welfare service was also due to expire in a number of weeks.36F[37] An application was also made by the Secretary to the Court in its parens patriae jurisdiction to authorise the Secretary to hold WD in the secure welfare facility until further order, if the bail order was not revoked.37F[38] Justice Elliott declined to revoke WD’s bail, and made orders in the parens patriae jurisdiction of the Court that WD could be held in a secure welfare service for a period of more than 42 days, notwithstanding the time limit in s 173(2)(b).38F[39] His Honour was readily able to conclude that given WD had been charged with murder, and remand in custody was the only viable alternative to placement in the secure welfare service, her ongoing placement in that service was in her best interests.39F[40]
[36]WD [2024] VSC 14.
[37]WD at [11]-[20].
[38]WD at [24]-[25].
[39]WD [105].
[40]WD [106].

The Secretary acknowledged that this case, involving a child on bail, involved quite exceptional circumstances which were not readily comparable to the present case.

A case of more direct application is the decision of Osborn JA in Re Beth.40F[41] In that case, the Secretary to the Department of Human Services applied for an order authorising placement of Beth, a 17 year old girl in the care of the Secretary, in a secure welfare service for an indefinite period, notwithstanding the limit of 42 days imposed by s 173(2)(b). Beth was intellectually disabled and had been in out of home care since the age of eight months old. She had experienced physical ill-health and sexual assaults during her childhood and had developed serious behavioural problems. While in residential care she had assaulted staff and frequently absconded. The Secretary considered that she was at significant risk of causing serious harm to herself and an ongoing risk of causing harm to others if not detained. The Secretary sought orders authorising the placement of Beth in secure residential accommodation with lock up facilities for an indefinite period.
[41](2013) 42 VR 124.

Justice Osborn considered in detail the statutory scheme and the scope of the Court’s parens patriae powers, in the context of a situation where the orders sought were plainly not authorised by statute. His Honour observed that:41F[42]

[T]he very fact that the orders sought do not fall within the legislative scheme which ordinarily governs the secure detention of children, points strongly to the need first to recognise the gravity of the deprivation of liberty which is in issue, and the corresponding necessity for its full and adequate justification and secondly to exercise great caution in making the order sought.

[42]Re Beth [126].

His Honour also considered the provisions of the Charter. His Honour concluded that s 38(1) of the Charter (which requires public authorities to take into account Charter rights in decision making) did not strictly apply to the Court in the exercise of its parens patriae jurisdiction. However, it would be appropriate to consider whether any orders made would result in the Secretary (who is a public authority bound to act in accordance with s 38) acting incompatibly with Beth’s rights.42F[43] Justice Osborn also held that the principles in s 7(2) of the Charter as to reasonable limits on human rights ‘should be seen as implicitly conditioning and informing the court’s discretion with respect to the parens patriae jurisdiction independently of s 7(2), and specifically that the court’s orders ‘should not go beyond authorising the least restrictive means reasonably available to achieve the purpose which the limitation seeks to achieve’.43F[44]
[43]Re Beth [198]-[199].
[44]Re Beth [201]. As to the Charter’s application to the Court see s 4(1)(j) (a ‘public authority’ for Charter purposes does not include ‘a court or tribunal except when it is acting in an administrative capacity’). See also s 6(2)(b) (the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3) and rights directly applicable to courts such as s 24 (right to a fair hearing – see eg Victoria Police Toll Enforcement v Taha (2013) 49 VR 1, 81-82 [247], [252] (Tate JA) ).

Justice Osborn ultimately concluded that in the circumstances, it was appropriate to make orders that Beth be placed in the secure lock up facility and to direct staff to use whatever means may be reasonably necessary for that purpose, including lock up facilities, provided always that the staff seek to use the least restrictive means necessary.44F[45] His Honour observed in reaching that conclusion:45F[46]

It follows from my ultimate conclusions that the limitations on human rights authorised by the proposed order are reasonable and satisfy the requirements of s 7(2). The limitations which the orders involve upon Beth’s right to liberty,46F[47] privacy,47F[48] freedom of movement,48F[49]and potentially freedom from medical treatment without consent,49F[50] are reasonable, necessary and proportionate in the circumstances of her case. In written submission, the Commission conceded that the Secretary could implement the proposed arrangements compatibly with the Charter “if the arrangements were only those necessary to achieve the purpose of caring for and protecting Beth and continue to be the least restrictive means reasonably available to achieve this purpose. This could be achieved through the provision of appropriate safeguards and oversight of the care, detention and treatment arrangements”.
In my opinion, those concessions were properly made. An underlying contextual reality is that, as the Secretary submitted, the probability is that if the orders are not made Beth will suffer substantial involuntary confinement either within [secure welfare service] or the youth justice system as she has in the past.

The Court’s parens patriae jurisdiction

[45]Re Beth [207].

[46]Re Beth [201]-[202].

[47][Footnote in original] Charter, s 21.

[48][Footnote in original] Charter, s 13(a).

[49][Footnote in original] Charter, s 12.

[50][Footnote in original] Charter, s 10(c).

The nature of the Court’s parens patriae jurisdiction, in a context relevant to this question of placing Beverley in confined circumstances in a secure welfare service, was described by Elliot J in WD as follows (footnotes omitted):50F[51]

The parens patriae jurisdiction of this court derives from the royal prerogative, and was historically exercised by the Court of Chancery. It is directed towards the protection of children and others who are not legally competent to look after themselves, and to this end, empowers the court to make orders relating to the supervision of parents and other guardians and the protection of the welfare of children. In making any such orders, the court’s primary concern should be the welfare of the child involved. It has been said that there are, in theory, no limitations on the breadth and scope of the parens patriae jurisdiction and it will support the making of “a great variety of orders and orders of great width”. However, the jurisdiction should only be exercised in exceptional cases, and with considerable care.

[51]WD, [68].

As observed by Gray J in Hage (No 1):

The parens patriae jurisdiction is very broad, is essentially protective, is governed in its exercise by the consideration of the best interests of the child, and must be exercised with caution.51F[52] In the exercise of the parens patriae jurisdiction on behalf of a child, the particular attributes of the child must remain in clear focus.52F[53]

[52]Mercy Hospitals, [46], following Osborne J in Re Beth (2013) 42 VR 124, 151 [127].

[53]Mercy Hospitals, [56]. See also Re CD [2024] VSC 456, [25]-[26] (Richards J).

The Court’s exercise of the parens patriae power is limited to exercising powers to make orders that are directed to the appropriate care and protection of the child. The parens patriae jurisdiction does not extend to unborn children: K. v T.53F[54] Although, given the broad nature of the discretionary power that is conferred by the parens patriae jurisdiction, the interests of an unborn child could potentially be a relevant matter to consider in a case of a pregnant child, it has not been necessary to do so in this case. There have not in this case been any matters raised in the evidence relating to the unborn child that require any separate consideration for the purposes of the orders now sought.
[54](1983) 1 Qd R 396, 401 (GN Williams J): ‘… an unborn child is not amongst those subjects of the Crown protected by this court in its delegated role as parens patriae’. Followed with approval in State ofQueensland v B [2008] 2 Qd R 562, 563 [4] (Wilson J) (‘The Court’s parens patriae jurisdiction clearly extends to Q, but it does not extend to her unborn child’); Central Queensland Hospital and Health Service v Q [2017] 1 Qd R 87, 91 [18] (McMeekin J).

The Court in exercising the parens patriae power is not strictly bound by the Charter, however Charter rights and the matters relevant to considering whether actions involve reasonable limits on rights identified in s 7(2) of the Charter are an appropriate and important guide for the Court in considering the appropriate scope of any orders.54F[55] Section 7(2) provides:
[55]Re Beth, [200]-[201].

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including –
(a)       the nature of the right; and
(b)       the importance of the purpose of the limitation; and
(c)       the nature and extent of the limitation; and
(d)      the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

Conclusions as to power to order that Beverley be placed in a secure welfare service and secure accommodation

The decisions of Osborn JA in Re Beth and of Elliot J in WD establish that the Court has the inherent power, in its parens patriae jurisdiction, to order that a child be placed in secure accommodation or a secure welfare facility in exceptional circumstances. Determination of the circumstances in which such an order will be justified is guided by the requirement in s 173(2)(b) of the CYF Act which, although not applicable to the exercise of the parens patriae powers, demonstrates parliament’s assessment that such confinement is only justified if there is a ‘substantial and immediate risk of harm to the child’. It is also guided by the matters identified in s 174(1) of the CYF Act, including that the first and paramount consideration is the best interests of the child, and that the child’s lack of adequate accommodation is not by itself a sufficient reason for placing the child in a secure welfare service. The Court should also consider the terms of the order closely to ensure that it does not go beyond authorising the least restrictive means reasonably available to achieve the purpose that the secure accommodation placement seeks to achieve.

Should the Court authorise a further placement in the secure welfare service?

The Secretary sought an order that Beverley be placed in the secure welfare service for a further 21 days, as she was at significant risk, particularly while pregnant, if not securely detained noting her past history of leaving her mother’s residence and residential placements for extended periods.

The Secretary’s evidence

The evidence was essentially to the effect that the reasons for this placement were that the Secretary considered there was a substantial and immediate risk of harm to Beverley if not placed in secure accommodation. The risk arose by reason both of a recent history of Beverley being sexually exploited by adult males, some of which exploitation had occurred when she had absconded from her mother or from residential care while under the Secretary’s care; and because her pregnancy put her at significantly increased risk if she was again to leave care in the company of those men and to not have medical care readily available to her.

An assessment report titled ‘Assessment of Sexual Knowledge’ dated July 202455F[56] was in evidence which referred to Beverley’s basic awareness of sexual practices but her limited knowledge of ‘protective behaviors, sexual health screenings, sexually transmitted infections (STIs), contraception, various types of relationships, consent, and the distinction between legal and illegal relationships with the age of consent.’
[56]First Begley Affidavit, Exhibit RJB-1.

Specific evidence supporting the Secretary’s application with respect to placement in the secure welfare service was given by Mr Robert Begley, a Deputy Area Operations Manager for the Department with 14 years of experience in working in the children and families sector, including ten years working as a social worker in child protection.56F[57]
[57]Affidavit of Robert John Begley affirmed 13 December 2024, [5] (Second Begley Affidavit).

Mr Begley’s evidence was as stated in his affidavit of 13 December 2024, that the risk at the time to Beverley in the community was ‘immediate and extreme and unable to be mitigated to an acceptable level’57F[58] due to:
[58]Second Begley Affidavit, [5].

(a) Beverley being sexually exploited by dangerous adult males throughout 2023 and 2024 who ‘are likely to harbour her from authorities trying to find her’,58F[59] and which risk is exacerbated by her reduced cognitive function, limited social and communication skills and limited understanding of appropriate relationships;59F[60]
[59]Second Begley Affidavit, [5].
[60]Second Begley Affidavit, [34].

(b) Beverley’s history of her going missing from placement or from her mother’s home (over 35 reports throughout 2024) and having been located throughout regional Victoria and New South Wales, often in the presence of adult males.60F[61] Beverley disclosed that on one occasion she was ‘accidentally’ punched in the face by an adult male; 61F[62]

(c) There were intervention orders in place preventing at least two of these adult males from having contact with Beverley, and a warrant had been issued for the arrest of one of them, but these measures had not prevented the males from luring her away from her accommodation for extended periods;62F[63]

(d) Beverley’s high risk pregnancy as a result of her short cervix and ‘her lack of engagement with medical care, including the extreme risk of harms associated with Beverley going into labour without medical assistance’,63F[64] as well her ‘current attitude toward her unborn baby’ and fear that she ‘may harm her baby’.64F[65]

[61]Second Begley Affidavit, [29].

[62]Second Begley Affidavit, [38].

[63]Second Begley Affidavit, [36]-[40].

[64]Second Begley Affidavit, [5].

[65]Second Begley Affidavit, [32]-[33].

Mr Begley in his affidavit also discussed various alternative accommodation options which the Secretary had considered to be insufficient in addressing the risk to Beverley in the community, including placement with Beverley’s mother or father65F[66] and ‘individualised residential placement’ with staff present.66F[67]
[66]Second Begley Affidavit, [46]-[49].
[67]Second Begley Affidavit, [50]-[53].

Mr Begley stated that placement with Beverley’s mother was not appropriate as Child Protection had assessed her mother as not being able to provide Beverley with the ‘emotional or practical’ support she needs and is unable to prevent Beverley from going missing with adult males who sexually exploit her (as evidenced by Beverley previously going missing from her mother’s home on at least 7 separate occasions in 2024).67F[68] Mr Begley noted that there were signs that Beverley’s mother had increased her methamphetamine use and was at times anxious and aggressive towards support workers.68F[69] Beverley’s father also was not an appropriate option as he has a long reported history of perpetrating family violence.69F[70]
[68]Second Begley Affidavit, [47]-[48].
[69]Second Begley Affidavit, [22]-[23].
[70]Second Begley Affidavit, [49].

Mr Begley’s evidence was that Child Protection had also determined that individualised residential care placement was not appropriate as it had been shown to be unable to prevent Beverley from going missing, even where there is a high number of staff onsite. He gave evidence about Beverley having gone missing from residential care approximately 23 times during the period January 2023 to June 2023, 26 times in June 2023 to December 2023 and 16 times in late December 2023 to April 2024.70F[71]
[71]Second Begley Affidavit, [51]-[52].

Evidence and instructions from Beverley

Counsel for Beverley conveyed her instructions as to her placement and living situation, as conveyed to the Managing Lawyer, in the mention on 11 December 2024. She instructed that she had enjoyed living with her mum because she ‘didn’t have to live in resi [residential care] … and I didn’t have carers with me 24/7 and all of that’.71F[72] She explained that she knew why Child Protection had put her in secure accommodation, being because ‘I was running away all the time and they didn’t know how to keep me safe, so they put me here’. When asked why, if she was happy living with her mum, she was running away, she gave instructions in the following conversation which was recounted to the Court:72F[73]

‘I was dating this person and he always wanted me to go out with him and I wouldn’t come home and I didn’t want to be alone without him, so I would stay out with him for a very long time.’ ‘Is he your boyfriend?’ ‘No he’s not my boyfriend.’ ‘Were you really good friends?’ ‘Yes’ ‘Did he have a house?’ ‘No we would go to hotels a lot, we would stay at hotels.’ ‘ So he was older than you?’ ‘Yeah.’ ‘Did you feel safe with him?’ ‘Yes I did’.
‘If you were running away with him, do you understand why Child Protection were worried?’ ‘Ah because I’m pregnant.’ ‘And what’s the danger about that?’ ‘I could die.’ ‘Where would you like to live when you leave secure?’ ‘I would like to live with my mum.’ ‘Would you say you would be safe with Mum?’ ‘Yes, I would not be running away and I would be keeping myself safe.’ ‘Do you know what would happen if you did run away?’ ‘They would send me back here and take me to court.’
… ‘I don’t like secure because I’m always like they have the doors locked all the time, I can’t have my normal clothes, I can’t have my shoes or my vape. I can’t watch normal TV. I just don’t like this place in general ‘cause I always have to be in my room and when I go outside, the fences are really high. I want to go home and see my mum.’

[72]Transcript 11/12/24, T12.01-08.

[73]Transcript 11/12/24, T12.09-T12.06.

Beverley gave instructions again on 14 December 2024, that she did not want to stay in the secure welfare service. She wanted to return to live with her mother.73F[74]
[74]Transcript 11/12/24, T12.22-28; Second Anderson Affidavit, [9].

The Managing Lawyer’s affidavit of 16 December 2024 gave evidence of Beverley’s instruction that although she was distressed at the prospect of a further stay in the secure welfare service, and preferred to return to stay with her mother, she consented to be placed in a secure unit rather than secure welfare if it was not possible to return to the care of her mother.74F[75]
[75]Second Anderson Affidavit, [9]-[10].

My observations on a view of the secure welfare service

At the view on 17 December 2024, I was provided with a tour of the secure welfare service by the Director of the secure welfare service and an Operations Manager, in the company of counsel for the Secretary and Legal Aid. The facility was an adapted residence, with secure perimeter including locked doors and high fences to the rear backyard. Two other young people were present in the facility. There were seven bedrooms each of which can be locked, a common room with television, dining area, an art space, an education room and a medical room where a doctor and nurse were present. The backyard was a grassed area with some trees, gym equipment, a basketball ring and a trampoline. The staff of the facility appeared caring and engaged, but the facility was, to use a description used by counsel for Beverley, a ‘prison like environment’ involving ‘confinement similar to a custodial penal environment’. 75F[76]
[76]Transcript 20/12/24, T23.29-T24.01.

I met with Beverley and had a brief discussion with her, and her counsel asked her some questions about the accommodation and about her pregnancy. As the discussion was not transcribed,76F[77] I later advised the parties that I would not take the statements made by Beverley into account unless they were repeated in evidence or formally by counsel in the hearing. It suffices to say that the discussion was consistent with the instructions which had been recorded in the evidence referred to above.
[77]My observations on the view, including as to the conversation with Beverley, were recorded in a memorandum of 17 December 2024 sent to the parties for their comment. No comments were received.

The further instructions from the Secretary as to alternative accommodation

At the hearing on 18 December 2024, after the view, the Secretary informed the Court that alternative accommodation, which would be a specific residential facility in which Beverley could live alone with carers, would be available in early January. The accommodation required assessment and maintenance work and it was estimated that work on the property would take until ‘around 3 January’.77F[78] This was confirmed at a mention on 20 December 2024. It was proposed that she live there in secure circumstances until she attended hospital to give birth.78F[79]
[78]Transcript 18/12/24, T11.16-29.
[79]Transcript 20/12/24, T2.12-17; T5.14-T6.05.

The submissions of the Secretary

The Secretary submitted that the proposed orders79F[80] which would authorise the Secretary to place Beverley in the secure welfare service for up to 21 days, but which required the Secretary to use best endeavours to make an alternative secure facility available to accommodate Beverley and carers alone, were appropriate. On my expression of concern at the lack of clarity as to where Beverley would be accommodated after giving birth, the Secretary provided the document ‘Placement options for Beverley Hage following the birth of her baby’.80F[81] These options did not involve Beverley being returned to the secure welfare service if she gave birth within the 21 day period in which the Secretary sought authorisation to place her in that service.81F[82]
[80]That is the orders proposed on 18 December 2024. See paragraph [32] above.
[81]Exhibit RJB-3 to the Third Begley Affidavit.
[82]Transcript 20/12/24, T02.22-30 and T04.12-15.

The submissions of counsel for Beverley

Although Beverley’s counsel was initially reluctantly willing to consent to orders authorising that Beverley be placed in a secure welfare service for a further 21 days, at the directions hearing on 20 December 2024, he ultimately made submissions as to why such an order should not be made. Counsel for Beverley submitted:

(a) The secure welfare service is not an appropriate environment for Beverley given her emotional and physical vulnerability and, in this regard, counsel also informed the Court that Beverley had been threatened by another child residing in the secure welfare service.82[83]
[83]Transcript 20/12/24, T23.29-T24.01 and T24.21-31.

(b) In exercising the parens patriae jurisdiction, the Court should have regard to the fact that s 173(2)(b) of the CYF Act only empowers the Secretary to place Beverley in a secure welfare service for 21 days and, in exceptional circumstances, a further 21 days.83.[84]
[84]Transcript 20/12/24, T24.05-08.

(c) Alternative accommodation arrangements could have been made earlier, given the Secretary was aware of the time limit imposed by s 173(2)(b).84F[85]

(d) The Secretary should only be authorised to place Beverley in a secure welfare service for a further 12 days, not a further 21 days. That authorisation should end when Beverley attends hospital to give birth, if she does so within the 12 days.85F[86]

(e) Although Beverley has a strong preference to return to the care of her mother, if that is determined not to be possible she is prepared to reside in a secure bespoke form of accommodation in the lead up to her delivery and in the period of necessary convalescence thereafter, and the Secretary should take active steps to investigate an alternative form of accommodation.86F[87]

[85]Transcript 20/12/24, T23.12-21 and T24.12-20.

[86]Transcript 20/12/24, T28.26-T29.27.

[87]Submissions on behalf of the Respondent, 16 December 2024, [29]-[30].

Counsel for Beverley made submissions more generally observing the need for the Secretary to consider her statutory obligations to consider the principles relevant to Beverley’s care. These principles included those in ss 10 and 11 of the CYF Act, and, because Beverley’s intellectual or cognitive impairment constitutes a disability within the meaning of the Disability Act 2006 (Vic), the principles in s 6(1) of that Act. Those which provide, most relevantly at ss 6(1)(d) and (e):

(d)persons with an intellectual disability living in a residential institution have the right to a high quality of care and development opportunities whilst they continue to reside in the institution;
(e)services for persons with an intellectual disability should be designed and provided in a manner that ensures developmental opportunities exist to enable the realisation of their individual capacities…

Conclusion as to the appropriate accommodation orders

I concluded that the serious nature of the risks to Beverley if she did not remain in secure accommodation until she gave birth or other more suitable accommodation became available were such that it was in her best interests that I make an order authorising the Secretary to place her in the secure welfare service for a further period, after the period of 42 consecutive days already authorised by the Secretary had expired.

The risk to Beverley from sexual exploitation by adult males known to the police, was clear, given the history of her having gone missing from her mother’s home and residential placements consistently, and being found in the company of these older males, in 2023 and 2024. Her vulnerability to exploitation was exacerbated by her mild intellectual impairment and limited understanding of appropriate relationships. Given the ongoing risk of Beverley being exploited by one or more of these adult men, at a time when she was in an advanced stage of pregnancy, I considered that there would be a serious and immediate risk to her if she was free to leave her accommodation, or if she was in accommodation where the adult males who had exploited her were able to come to see her.

It is extremely unfortunate that Beverley would be subjected to confinement and effective detention to protect her against the risk posed by these ‘persons of interest’, rather than that risk being addressed by controlling their conduct. However the evidence was to the effect that although the police in Victoria and New South Wales were monitoring at least two of the men with whom Beverley had been spending time, had issued a warrant for the arrest of one of them, and intervention orders were in place preventing them from having contact with her, these measures had not prevented the exploitation. The evidence was to the effect that one of the men had lured Beverley away from her mother’s home notwithstanding the intervention order.

I also took into account that Beverley’s engagement with medical services had been on occasions reluctant and there were extreme risks of harm to Beverley if she was to go into labour without medical assistance.

I considered the evidence as to other accommodation options and accepted that, taking into account Beverley’s history of leaving her mother’s home and residential placements and going missing for extensive periods during 2023 and 2024, only a secure accommodation would manage the risk.

Given these risks, and the lack of effective alternatives to manage the risks, although I accepted that the confined conditions in the secure welfare service were onerous and difficult for Beverley, it was in my view in Beverley’s best interest that she remain in secure accommodation while she was pregnant.

The proposal of the Secretary was that I authorise that Beverley could be placed in the secure welfare service for a further 21 days. I did not consider this to be appropriate not only because that order would, potentially, have the effect of authorising that she be returned to the secure welfare service after giving birth (even acknowledging that this was not the Secretary’s intention), but because less restrictive alternatives should be available to Beverley. Section 175 requires the Secretary to plan for and support a child who has been placed in a secure welfare service to move to another suitable placement. It was not clear from the evidence whether the criticism of counsel for Beverley that the planning for alternative accommodation had not progressed with appropriate speed, but it is plainly an obligation that the Secretary should consider carefully and at an early stage with all young people placed in a secure welfare service.

It is unnecessary to consider that issue further, given that it became apparent in the course of the proceeding that other accommodation had been identified. It was not appropriate to authorise accommodation in the secure welfare service for any longer than essential and I limited the authorisation for Beverley’s placement there to a period of 12 days, in the expectation that she would be able to reside in the new accommodation by 3 January 2025.

As the evidence was that Beverley was expected to give birth in or around late January,87F[88] and the risks to her health and well-being remained acute until she attended hospital to give birth, I also ordered that the Secretary be authorised to place Beverley in that alternative accommodation as secure accommodation. Again I took into account the restriction of Beverley’s freedom and the difficulty for her of being confined but I consider that the limited further requirement to remain in secure accommodation until she gave birth was a justifiable limitation on that freedom to manage the risks to her health and safety.
[88]See paragraphs [83]-[85] below.

Although the Secretary’s evidence included reference to a fear that Beverley may harm her baby should she give birth without medical assistance,88F[89] I did not consider this to be a significant risk, and it was not a factor in my decision that Beverley should remain in the secure welfare service for a further period. The concern was expressed to be based on several ‘comments’ made by Beverley during her placement to staff in the secure welfare service. The circumstances of the brief statements recounted in the evidence were not explained and it remained possible that they were expressions of frustration rather than any reliable indication that she would not take proper care of her baby.
[89]Second Begley Affidavit, [33].

The medical treatment issues

The Secretary sought declarations to the effect that the Secretary was authorised by s 172 of the CYF Act, in circumstances where a child is not Gillick competent to provide consent, to provide parental consent to the use of restraint by medical practitioners. The restraint that the Secretary identified as being authorised in this case included:89F[90]
[90]Amended Originating Motion order (2) (a) to (e).

(a) chemical and physical restraints ‘to facilitate medical examination and medical treatment, including a planned caesarean section and post-natal care’;

(b) the use of a general anaesthetic to allow a planned caesarean section at or around 39 weeks gestation, and to allow an unplanned caesarean section to occur if Beverley went into labour before 39 weeks gestation; and

(c) chemical and physical restraints to ‘facilitate the insertion of a reversible contraception for the purposes of medical treatment’.

I advised from the outset that I would not be willing to make any declarations as to the scope and effect of the Secretary’s powers under s 172 in general terms, and that the only declarations or orders that I would consider would relate specifically to Beverley and her circumstances.90F[91] Although it was understandable that the Secretary may wish to clarify the scope of her powers for future cases, it was not appropriate in an urgent case to make broad determinations going beyond the scope of the proceeding before me.
[91]Transcript 18/12/24, T2.09-23.

Further, the scope of the proposed declaration and its interaction with the specific restraints for which authorisation was sought in this case raised, in my view, a difficult issue which went beyond the question of use of restraint. There was a potential issue relating to the Secretary’s statutory powers, which encompass the powers of a parent, to authorise medical treatment for a child. Specially, there was an issue, unresolved by any authority that I was able to identify, as to whether the Secretary has authority to consent to a child without Gillick competence being required to undergo, contrary to the child’s wishes, a medical procedure such as a planned caesarean section under general anaesthetic without first being permitted to attempt to have a vaginal delivery. The Secretary contended that s 172 of the CYF Act did confer that authority; and counsel for Beverley took no position on it.

I return to that issue below, with the issue raised by the request for authorisation of restraint, which the Secretary did submit was dependent on Court authorisation. It is first convenient to set out the evidence relating to the medical treatment recommended for Beverley and the associated restraints for which authorisation was sought, before then addressing the issues of whether the Secretary had power to authorise all the proposed medical treatment (even if not the associated restraints) and whether the restraints associated with the proposed treatment should be authorised.

The evidence called by the Secretary

At the first hearing before Gray J, counsel for the Secretary called viva voce evidence from three witnesses in relation to Beverley’s medical condition and as to the medical treatment she required. That evidence was summarised by Gray J in his Honour’s judgment,91F[92] and which I draw from here:
[92]Hage (No 1), [11].

(a) Associate Professor Stefan Kane (Dr Kane), a maternal foetal medicine subspecialist obstetrician at the Royal Women’s Hospital, whose affidavit92F[93] exhibited:
[93]Affidavit of Associate Professor Kane sworn 6 December 2024.

(i) a report dated 27 November 2024 by Dr Alina Roman of the Royal Women’s Hospital to the Department;93F[94] and
[94]Kane Affidavit, Exhibit ‘SCBK-1’.

(ii) a functional assessment report relating to Beverley;94F[95]

(b) Dr Kate Darbyshire, a General Practitioner at Youth Support + Advocacy Service (YSAS) who is currently or was recently treating Beverley, and who attended in response to a subpoena; and

(c) Mr Begley of the Department who gave evidence from Departmental records,95F[96] a bundle of which was tendered with his evidence.96F[97]

[95]Kane Affidavit, Exhibit ‘SCBK-2’.

[96]Affidavit of R J Begley initialled by Mr Begley and received as his evidence in chief on 6 December 2024.

[97]Exhibit bundle ‘RJB-1’.

Justice Gray summarised the effect of the evidence of Dr Kane and Dr Darbyshire before him relating to Beverley’s pregnancy as being that:97F[98]

… Beverley would probably not have a pre-term labour and would probably give birth in about five to eight weeks’ time. Beverley is unlikely to go into labour now, or for some weeks, although with each week that passes from now on, the chance of her going into pre-term labour increases.

[98]Hage (No 1), [44].

Dr Kane gave evidence that Beverley was at risk of a spontaneous pre-term labour, primarily because she has a shortened cervix in the mid-trimester, which is a risk factor for spontaneous pre-term labour. There were, however at the time Dr Kane gave evidence on 6 December, no signs or symptoms to suggest imminent labour.98F[99]
[99]Transcript 06/12/24,. T51.26-T52.05.

The evidence was, therefore, that it was anticipated that Beverley would give birth in late January, but there was a risk that it may be earlier.

Evidence relating to Beverley’s developmental and functional capacity

With respect to the evidence as to Beverley’s developmental state, Gray J summarised the evidence before him as follows:99F[100]
[100]Hage No 1, [46]-[48] (citations in the original).

Dr Kane gave evidence, based on a functional assessment report for Beverley dated August 2024100F[101] that:
[101]Exhibit SCBK-2, see also Exhibit RJB-1, pp 14-46. The report states it was prepared by Alex Billett, but appears to be signed by Jerome Copeman, Occupational Therapist, on 9 September 2024.
[Beverley] ‘has been diagnosed with several medical and developmental conditions that significantly impact her daily functioning and overall quality of life’.

Relevantly, the report notes a diagnosis of ‘Moderate Intellectual Disability’. The report states:
‘[Beverley] has an IQ of 45, placing her in the moderate range of intellectual disability. This significantly affects her cognitive abilities, including her capacity for problemsolving, planning, understanding complex information, and engaging in safe social interactions’.

An earlier assessment by a psychologist, in 2020, was adduced as part of Mr Begley’s evidence101F[102] but is less probative because of its age and affords no greater insights. Further assessment reports forming part of Mr Begley’s evidence included a report from a speech pathologist in August 2023,102F[103] which included information that Beverley:
… has a complex psychosocial background and a history of exposure to childhood trauma, … These consistent changes in environment have dramatically effected [her] health in all aspects. …
[102]Exhibit RJB-1, pp 3-13.
[103]Exhibit RJB-1, pp 47-58.

Evidence as to plans for mode of delivery of Beverley’s baby

The report of Dr Roman to the Department identified both the elements of standard pregnancy care that is offered to patients at the Royal Women’s Hospital, and care recommendations specific to Beverley.103F[104] A significant component of those recommendations related to the need for blood testing, and does not need to be further considered here given that Beverley successfully gave blood samples on 12 December 2024. As to mode of delivery, the report stated as follows:
[104]Kane Affidavit, Exhibit ‘SCBK-1’.

– As a treating team we have significant concerns about [Beverley’s] ability to navigate a vaginal delivery
– As highlighted above, attempt at a vaginal delivery involves multiple components and our concerns arise with [Beverely]’s
·     Ability to adapt to the dynamic nature of labour and the unpredictable outcome/complications that may arise – e.g. need for emergency caesarean section, instrumental delivery, excessive bleeding post delivery and need for management of this
·     Ability to agree to IV access, blood tests, internal examinations, procedures in intimate areas of the body – such as suturing of vaginal tears, and the difficulties in achieving these goals of care if she does not cooperate
·     Ability to access analgesia – in the setting of needle phobia [Beverley] may not be accepting of an epidural and given the delicate nature of the procedure it may be impossible to achieve without her cooperation
·     Ability to understand and comprehend the components of labour and what is required of her, e.g. active pushing in the second stage of labour
·     The duration of labour and its effects on her fatigue and dysregulation
·     The distress that labour may cause if she declines interventions and the intimate nature of the examinations required

– Providing a clear deliver plan will help in the education and preparing [Beverley] for the delivery, as she will not need to understand and navigate multiple possibilities
– An elective caesarean at 39 weeks under a general anaesthetic is the safest and least distressing mode of delivery
– Should [Beverley] present in labour prior to this date, a c-section (under general anaesthetic) should remain the preferred mode of delivery, unless birth is eminent at time of presentation
– We seek DFFH’s pre-consent for this procedure so it can be planned and scheduled in a timely manner.

The report also observed that, taking into account the plan for a caesarean section, there is a risk of uterine rupture in subsequent pregnancy, which ‘is a serious complication and would require an urgent emergency operation and may result in fetal or maternal death’. For this reason, the report recommended that Beverley ‘be discharged on reliable contraception, ideally a long acting reversible contraceptive, to prevent pregnancy with a short inter-pregnancy interval’. The nature of that contraceptive was identified by Dr Kane in his affidavit as follows:104F[105]

I did not identify in the time available any Australian authorities which considered the issue of the status of a decision to authorise medical practitioners to require a child to give birth by a particular mode of delivery, and was not referred to any such decisions by the parties. I did identify several overseas cases in which applications were made to Court for authorisation to require an adult woman without medical decision making capacity to give birth by caesarean section.

In R v M,175F[176] the Family Court of New Zealand made orders authorising medical care and treatment of a 33 year old woman with severe schizophrenic illness to deliver her baby by caesarean section. In that case the woman declined to consent to a planned caesarean but did consent to a caesarean section during labour if complications occurred placing her baby at risk. The Court found that the woman did not, by reason of her mental disorder, appreciate the full significance of the risks her disorder posed to herself and her child by proceeding with a natural birth, and that she would have consented to a caesarean if she did have the ability to appreciate the risks.176F[177]
[176][2005] NZFLR 1095.
[177]R v M, [27] (Judge M D Robinson).

In St George’s Healthcare NHS Trust v S,177F[178] the Court of Appeal of England and Wales considered the position of a pregnant woman who was suffering pre-eclampsia but was refusing, against medical advice, to have a caesarean delivery. She was assessed as requiring admission to a mental hospital against her will and continued to refuse to have the caesarean section delivery. The hospital applied to the Court for a declaration that her consent was not required for that procedure, which was granted by a Court at first instance, and she gave birth by caesarean section. On appeal against the declaration to the Court of Appeal, the woman was successful in arguing that her transfer to the hospital was unlawful, and it was held also that the declaration ought not have been made, and should be set aside.178F[179]
[178][1998] 3 WLR 936.
[179]St George’s Healthcare NHS Trust, 965-967.

Decisions of the Court of Protection of England and Wales have also authorised medical treatments relating to the mode of delivery (including caesarean section under general anaesthesia) and the use of physical and medical restraint in cases of women who lacked capacity to make medical decisions by reason of mental illness or intellectual disability.179F[180] These cases did not involve the exercise of the parens patriae jurisdiction.
[180]See for example North Bristol NHS Trust v R (by her Litigation friend the Official Solicitor) [2023] EWCOP 5, [57]-[69]; [80]-[84]; NHS Trust 1, NHS Trust 2 v FG (by her litigation friend, the Official Solicitor) [2014] EWCOP 30; [17], [52]-[60]; A University Hospital NHS Trust v CA (by her litigation friend, the Official Solicitor) [2016] EWCOP 51,[14]-[17]; [44]; Dartford and Gravesham NHS Trust v SEB (by her litigation friend, the Official Solicitor) [2021] EWCOP 55, [36]-[39].

The parties’ submissions

The Secretary contended that a medical procedure such as a planned caesarean section under general anaesthetic was not a procedure or treatment of a kind which fell within the ambit of the cases recognised in Re Marion which could not be consented to by a parent on behalf of their child and would require court authorisation.180F[181] Authorisation of delivery by caesarean section under general anaesthetic was not, unlike the High Court’s observations in Re Marion as to sterilization,181F[182] an irreversible operation,182F[183] although it did involve invasive, major surgery. It was submitted that taking into account the significant risk of making the wrong decision and the gravity of the consequences, it did not fall within the special category identified in Re Marion.183F[184]
[181]Transcript 18/12/24, T43.22-T4
[182]Re Marion, 250.
[183]Transcript 20/12/24, T12.06-22.
[184]Transcript 20/12/24, T14.17-25.

Counsel for Beverley did not make specific submissions on the issue but emphasised that it was hoped that it would be unnecessary to authorise such a planned treatment if Beverley was permitted the opportunity to labour naturally before progressing to other modes of delivery.184F[185]

Conclusion as to status of a decision on behalf of a minor to consent to a requirement of a caesarean section under general anaesthetic

[185]Transcript 20/12/24, T34.19-22; T35.21-T36.02.

My tentative view, after considering the reasons of the majority in Re Marion, is that a decision on behalf of a minor who lacks Gillick capacity, to authorise a planned caesarean section under a general anaesthetic, in circumstances where no opportunity is given first to labour naturally, is a decision for which the consent of a parent is inadequate and for which the authorisation of a Court is required. That view does not apply to a situation where a caesarean is required as a medical necessity, because other modes of childbirth are not or are no longer safe for the child giving birth.

My reasons for that conclusion are, taking into account the considerations identified by the Court in Re Marion, that there are risks of both a mistaken assessment as to a child’s competence and as to the necessity of compelling that mode of delivery. Here, Beverley has been assessed as not having Gillick competence, and her legal representatives have not challenged that assessment. However, there is no independent assessment of her competence to that of the treating teams advising the Secretary. It also appears that Beverley is likely to be a case at the borderline of competency, noting the assessment by Legal Aid practitioners experienced in working with children that she is competent to give legal instructions. Also relevant is the evidence, arising from Beverley’s most recent interactions with medical staff prior to birth, that she appeared to have a basic understanding of the processes by which she might give birth and the proposed treatments, and of her reasons for wanting to attempt a vaginal delivery, which were entirely rational.

Secondly, although a determination as to mode of delivery and an imposed decision that a child must give birth by caesarean delivery under general anaesthetic does not carry the same gravity and long term consequences as a decision to sterilize a child, it does have the potential to give rise to significant psychological impacts, as well as possible impacts on the mother’s relationship with her new baby. No evidence was given as to these potential psychological impacts or on any impacts that giving birth under a general anaesthetic would have on Beverley’s physical and emotional bonding with her baby after birth, so I do not say anything more about that issue. However it is clear from Re Marion that one significant benefit of a requirement of court authorisation is to enable evidence to be given about the full range of consequences of a procedure which is not simply medical treatment but may have significant and potentially long term psychological effects.

It was not necessary to make a final determination of this issue in this case before making orders. That is because the Secretary acknowledged that any restraint involved in such treatment may require Court authorisation. I determined for the reasons that follow that there should be no authorisation of the restraints involved in a caesarean section delivery under general anaesthetic[186] unless it was the only medically safe option after Beverley had attempted to deliver her baby by vaginal delivery, and then if necessary and if Beverley wished to do so, a caesarean section under a neuraxial anaesthetic (rather than general anaesthetic). The only circumstances in which Beverley would then require a caesarean under a general anaesthetic would be the emergency situations in which medical consent was not required.185F[187]

Should the Court make orders authorising medical practitioners to use restraints for the purposes of enabling a planned caesarean section under general anaesthetic?

[186]Which in my view would, in this instance at least, be a significant chemical restraint.

[187]Re Marion, 239; see also Re Rosie (no 3) [66].

I was unwilling to make the orders sought in the Amended Originating Motion, which would have had the effect of authorising the medical practitioners to proceed with the original proposal of proceeding directly to delivery of Beverley’s baby by caesarean section under a general anaesthetic. In my view, the evidence prior to the additional evidence received after the consultation on 20 December 2024 did not justify the Secretary consenting to a mode of delivery involving a planned caesarean section under general anaesthetic, although it is plain that the Secretary was following medical advice. Taking a view of the evidence overall, it appeared that the concern that Beverley would be too dysregulated to cooperate with the processes required for a successful vaginal delivery and administration of an epidural was based primarily on her behaviour during her appointment on 22 November 2024 when the Royal Women’s Hospital staff sought to take her blood, and on concerns as to her potentially aggressive nature, based primarily on an understanding that she had threatened her ‘grandmother’ with a knife.

I have explained above why I consider that although Beverley may have been difficult to engage on occasion, her behaviour on 22 November 2024 was understandable given the conditions in which she attended the appointment on that day, and her needle phobia. She had subsequently demonstrated an ability to have a blood test administered with the assistance of anti-anxiety medication and a support person. I have also noted above at [101] that it is necessary to consider the reports of Beverley’s threats to her mother in context, and taking into account the assessment of a child protection practitioner that this was out of character for her.

The evidence did not in my view establish that Beverley was likely to be so dysregulated as to be unable to cooperate in the processes required to have a vaginal birth, including administration of an epidural, particularly in light of the established effectiveness of use of appropriate anti-anxiety medication.

The assessment that a caesarean delivery under general anaesthetic was in Beverley’s best interests because a vaginal labour would be too psychologically traumatising could only be given limited weight where the evidence did not disclose any consideration of what psychological trauma or other reaction Beverley may have to being required to deliver her baby by caesarean under general anaesthetic, contrary to her consistently expressed wishes. Taking into account the evidence, Beverley’s wish to attempt to have a vaginal birth, and also noting her mother’s support for Beverley to do so, I considered that any authorisation which would enable her to be directed to have a caesarean under general anaesthetic was not an appropriate exercise of the parens patriae power.

Fortunately, following the consultation on 20 December 2024, the medical advice progressed so that it was clear that the anaesthetic team would be open to facilitate a vaginal birth with epidural, and that the next most appropriate option would be a caesarean section not under general anaesthetic, but under neuraxial anaesthesia.186F[188] Dr Roman also, having had a consultation with Beverley in which she was calm and engaged, appeared to be open to the potential for a vaginal delivery.
[188]Report of Nicholas Jansen.

The Secretary ultimately on 23 December 2024 proposed alternative orders to those identified in the Amended Originating Motion, which provided for the potential for Beverley to have a vaginal birth, including assistance by epidural, a caesarean section without general anaesthetic, or if required a caesarean section with general anaesthetic. These were not opposed by counsel for Beverley.

I considered that it was appropriate to authorise use of restraint to facilitate the medical practitioners in caring for Beverley if necessary during her labour, including, if ultimately medically necessary, by administration of a general anaesthetic to facilitate a caesarean. That authorisation, to ensure that the restraints imposed involved the most limited infringement of her autonomy, would require the medical practitioners to permit her to attempt a vaginal delivery if she still wished to do so; to have that vaginal delivery facilitated by epidural if she wished, and to have a caesarean under regional anaesthetic rather than general if those steps were consistent with her safety and her immediate and long term physical and psychological health. I considered that to limit the authorisation of restraint to a situation where medical practitioners should first attempt to permit Beverley to deliver her baby as she wished if it was safe to do so was in Beverley’s best interests.

I therefore made the following orders on 23 December 2024:187F[189]
[189]These orders were replaced by orders made 16 January 2025 which stipulated that the orders authorising use of restraint applied only so long as the ‘care by Secretary’ order made in respect of Beverley remained in force. That order was due to expire on 24 January 2025, but an application to renew the order had been made to the Children’s Court to extend the order, which by reason of s 293(3) of the CYF Act, had the effect that the order remained in force until the extension application was determined. Affidavit of Robert Begley Affirmed 16 January 2025.

(1)Subject to paragraph 3 below, the medical practitioners engaged in the medical care and treatment of the Respondent are authorised to perform on the Respondent a planned caesarean section under general anaesthetic to deliver her baby, and to undertake any necessary medical examination or medical treatment to facilitate that treatment, in circumstances where the medical team has assessed that it is not safe, or is not regarded by the medical practitioners as being in the Respondent’s best interests (including having regard to her immediate physical and psychological health, and her long term physical and mental well-being) to deliver her baby by one of the following means:
(a)a vaginal delivery of the Respondent’s baby with any necessary medical interventions, including the administration of an epidural (provided that an epidural is medically assessed to be available and safe for the Respondent);

(b) a caesarean section under neuraxial anaesthesia.
(2)Subject to paragraph 3 below, the medical practitioners engaged in the medical care and treatment of the Respondent are authorised to use restraint to facilitate the medical care and treatment of the Respondent referred to in Order 1, including in paragraphs (a) and (b) thereof.

(3) The authorisation in orders 1 and 2 above is conditioned upon:
(a)the Respondent’s treating medical team giving priority to the Respondent’s expressed preferences at the relevant time, including to attempt to give birth by any of the means referred to in order 1 above, where those preferences can be accommodated without compromising her safety;
(b)the use of restraint being the least restrictive means of enabling medical examination, medical treatment, medical procedures and/or surgeries for the Respondent;
(c)all reasonable efforts having been made by the Respondent’s medical team, assisted by reasonable supports (which may include a support person), to assist in optimising the Respondent’s understanding and express her wishes, to:
(i)ascertain the Respondent’s views and wishes, if they can reasonably be ascertained; and
(ii)avoid the use of restraint by explaining to the Respondent in language likely to be understood by her the medical options, including their advantages, disadvantages and potential side-effects, and the reasons for the recommended medical examination, medical treatment, medical procedures and/or surgeries;

(d)the Respondent’s treating medical team agreeing with the use of restraint;
(e)those treatments having been recommended by a qualified medical practitioner of whom the Respondent is a patient; and
(f)the specific treatment and form of restraint having been consented to by the Secretary acting in conformity with her obligations in ss 10 and 11 of the Children, Youth and Families Act 2005 (Vic).

Should the Court authorise use of restraint to enable medical practitioners to provide long term contraception to Beverley by way of an IUD?

The Secretary, on medical advice, had sought authorisation for the restraints involved in the insertion of an IUD while Beverley underwent the caesarean section. I initially had reservations about this proposed procedure as there was little evidence about the IUD and how it would be managed once inserted, particularly in circumstances where the Secretary was not confident that Beverley would regularly engage with medical services. Dr Roman’s viva voce evidence established that the IUD could be readily removed, including by the person using it, and I was satisfied that it would be safe.

However, as the evidence was also that the IUD as long-term contraception was only recommended to manage the risk that a further pregnancy would create if Beverley gave birth by caesarean section (namely rupture of the uterus), I did not think it appropriate to authorise any restraint for insertion of the IUD if Beverley did not undergo a caesarean section. If she did ultimately have a caesarean section, the evidence indicated that there would be no additional restraint involved in inserting the IUD.

It was not, therefore, necessary to consider this issue further.

When Beverley did give birth by vaginal delivery, the treating team at the Royal Women’s Hospital sought consent to insert the IUD when Beverley underwent surgery for the tearing experienced during the delivery. The Secretary declined to consent on Beverley’s behalf because the recommendation for the IUD had been based solely on the risk of further pregnancy arising after a caesarean section, which had not occurred.188F[190]
[190]Seventh Begley Affidavit, [31].

Court supervision after the accommodation orders and medical treatment orders

I was of the view that it was appropriate, given that Beverley’s confinement in the secure welfare service and then secure accommodation was authorised only by the Court’s exercise of the parens patriae jurisdiction, to continue to supervise the administration of the accommodation and medical treatment orders and to ensure that the Court was kept informed of Beverley’s situation. When making the substantive orders I listed the matter for mention and ordered the Secretary to provide information about Beverley’s situation by affidavit prior to that hearing.

The Secretary filed affidavit evidence on 10 January 2025 stating that Beverley had been moved out of the secure welfare service and to a residential placement on 2 January 2025.189F[191] She was supported in the move by a child protection worker and her support worker from Jesuit Social Services. The affidavit described Beverley as having ‘generally settled well into her new placement with no behavioural concerns reported’; a visit with her mother was being arranged, and although Beverley had expressed dissatisfaction about some aspects of her conditions, she had commented that she liked the new accommodation.190F[192] She had also had a further appointment at the Royal Women’s Hospital at which she had successfully received an iron infusion recommended by the medical treating team, assisted by numbing cream and nitrous oxide.191F[193]
[191]Affidavit of Robert John Begley affirmed 10 January 2024 (Fourth Begley Affidavit).
[192]Fourth Begley Affidavit, [5]-[9].
[193]Fourth Begley Affidavit, [14]-[16].

At the mention on 13 January 2025, I was informed that there was a planned induction for Beverley’s birth on 28 January 2025,192F[194] which, according to Beverley’s counsel, she was apparently comfortable with.193F[195] Arrangements had been made for Beverely and her baby to go to a mother and baby unit operated by an early parenting centre commencing 11 February 2025, this being the intake date closest to when Beverley would give birth.194F[196]
[194]Transcript 13/01/25, T20.16-19.
[195]Transcript 13/01/25, T22.12-18.
[196]Transcript 13/01/25, T5.17-18; T7.9-15.

At the mention on 17 January 2025, I was told by counsel for Beverley that she was frustrated with being locked up in the secure accommodation, but her main concern was about where she would be living after giving birth, and that she had a concern that she may be homeless.195F[197] The Secretary explained that there were arrangements in place to ensure that after birth her current accommodation would remain available following her release from hospital, and that there would be no arrangement for her to be confined there. The arrangement remained for her to attend the early parenting centre.196F[198]
[197]Transcript 17/01/25, T8/21-31.
[198]Transcript 17/01/25 T5.03-25.

With the intention of providing some reassurance to Beverley that there were arrangements in place for her accommodation I ordered the Secretary to file an affidavit identifying the accommodation planning that had been undertaken for Beverley. That was done by affidavit filed on 22 January 2025.197F[199] That affidavit gave evidence of planning for Beverley’s accommodation needs which included consideration of scenarios in which Beverley’s baby was, after assessment, made the subject of protection orders, and scenarios in which Beverley retained the care of her baby, including the potential for a foster care placement for Beverley and her baby.198F[200] The affidavit confirmed that it was recommended that Beverley attend the early parenting centre with her baby on 11 February 2025, and that on completion of her stay in hospital after giving birth, Child Protection would source an appropriate placement for Beverley and her baby, which may include:199F[201]

1.        A continuation in the current arrangement; or
2.        A new placement with a service such as Lighthouse; or
3.        A foster care placement … .

[199]Affidavit of Robert John Begley affirmed 22 January 2025 (Sixth Begley Affidavit).

[200]Sixth Begley Affidavit, [6]-[8].

[201]Sixth Begley Affidavit, [10].

The evidence was that these arrangements and potential options had been explained to Beverley.200F[202]
[202]Sixth Begley Affidavit, [12]-[17].

At the final mention on 23 January 2025, it was submitted by the Secretary that there was no intention to keep Beverley in secure accommodation after she had given birth and that although she would be able to live in the current residential accommodation following the birth, with her baby, if necessary between leaving hospital and entering the mother and baby unit placement, it would not be under secure circumstances. Counsel for the Secretary submitted that there would be no role for the Court in supervising the Secretary’s care of Beverley after she had given birth. It was submitted that it would be appropriate for the Secretary to provide an affidavit as to the circumstances of the birth and of any restraint which had been required, and then in the absence of any other unanticipated issue for the Court to dismiss the proceeding. Counsel for Legal Aid agreed with that proposal.

On 27 January 2025 the Secretary filed an affidavit which advised that Beverley had given birth, and gave information as to the extent to which any restraint had been involved.201F[203] In summary the evidence was that in addition to Beverley recovering well after having commenced labour without induction and having had a vaginal delivery, and her baby being well, the medical team had not been required to apply restraints to Beverley without her consent, and her consent had been sought and given for necessary interventions for pain or to monitor the baby, and the surgery to repair tears. Her mother had attended hospital for her labour at Beverley’s request and was present during and after birth. The Affidavit contained the following extract from the mid-wife notes entered at the conclusion of labour and delivery:202F[204]

[Beverley] was appropriate with staff for entirety of shift. She was able to direct staff when she did not want them to touch her or perform an examination and always did this in a polite and direct way. Following the birth [Beverley] was very appropriate with baby [name omitted], asking staff to assist with holding her and positioning her correctly. She acted very loving towards [her baby] and asked appropriate questions about her care. [Beverley] provided consent to care for [her baby] (e.g. weight/baby check/injections) with confidence and asked appropriate questions regarding their indication.
[Beverley]’s mother … was chatty throughout the labour and asked appropriate questions of staff and very keen to help. She was supportive of [Beverley] and showed compassion and kindness to her, providing praise of how well she was doing. Following the birth [Beverley’s mother] assisted with bottle feeding the baby and was confident in this.

[203]Affidavit of Robert Begley affirmed 27 January 2025 (Seventh Begley Affidavit).

[204]Seventh Begley Affidavit, [35].

Orders were made today dismissing the proceeding. Counsel and Legal Aid having previously advised that no costs orders were sought, there were no orders as to costs.

Closing observations.

The evidence provided as to Beverley’s birth of her daughter, and the evidence in the proceeding generally of the developing views of the treating medical staff over time as to what treatments were required for Beverley indicate the value of continuous engagement to assess what interventions or treatments may be necessary for a child. It also demonstrated the importance of, where possible, providing explanations and opportunities to enable the child to understand the rationale for proposed medical treatments, and also to develop and express views to the extent possible about treatments and the viability of potential alternative medical responses which may be more consistent with the child’s wishes. It appears to me that Beverley’s initial distress which prompted assessments by medical practitioners that she would be too psychologically traumatised, and too dysregulated, to undergo a natural labour and the medical interventions that may involve, was alleviated over time as the reality of child birth and her medical options for child birth were explained to her. Beverley’s view as to her own capacity to have a natural birth and manage the pain involved with medical assistance was reinforced by careful and patient explanations from medical staff, and her belief in her own ability was ultimately vindicated by her strength in managing the challenging process of childbirth.

The continued willingness of medical staff, in the context of their onerous responsibilities not only for Beverley but for multiple patients, to engage with Beverley and consider medical care alternatives to the strongly interventionist approach initially thought necessary, enabled this outcome which involved the most limited interventions consistent with her safety and wellbeing, and which was aligned with Beverley’s wishes.

---

[2025] VSC 18

31 January 2025